United States of America, Appellee, v. Ricky Cooper, Appellant, 37 F.3d 1503 (8th Cir. 1994)

Ricky Cooper appeals the district court's¹  order denying him leave to file an untimely motion for a new trial and denying without prejudice his request for relief under 28 U.S.C. § 2255. We affirm.

On February 3, 1994, a jury found Cooper guilty of being a felon in possession of a firearm. On March 14, 1994, before he was sentenced, Cooper filed a motion seeking leave to file an untimely motion for a new trial and alternatively seeking relief pursuant to section 2255. He also submitted his proposed new trial motion, asserting that he was denied an impartial jury because two jurors saw him in handcuffs in the hallway, and that he was denied effective assistance of counsel with respect to certain witnesses. The district court, without a hearing, summarily denied Cooper's motion for leave to file an untimely new trial motion and denied section 2255 relief without prejudice.

A motion for a new trial based on any ground other than newly discovered evidence must be made within seven days after the verdict unless the district court grants an extension of time within these seven days. Fed. R. Crim. P. 33. Cooper did not present his motion as based on newly discovered evidence, and he did not seek leave to file the motion until over a month after the verdict. Thus, the new trial motion was clearly untimely, and the district court lacked authority to grant Cooper an extension to file it. See United States v. Beran, 546 F.2d 1316, 1319 n.1 (8th Cir. 1976), cert. denied, 430 U.S. 916 (1977) (time constraints of Rule 33 are jurisdictional).

The district court also properly denied without prejudice Cooper's premature request under section 2255. Because the district court did not examine the merits of Cooper's claims, we shall likewise refrain from doing so at this time. See United States v. Holy Bear, 624 F.2d 853, 856 (8th Cir. 1980).

Accordingly, we affirm.